Americans Get The Judiciary We Pay For

WASHINGTON -- On New Year's Day, Chief Justice John Roberts, pursuant to his duty to report annually on the condition of the federal judiciary, issued a short and persuasive plea. It was lost in the cacophony of political news.

Besides, why worry about the judiciary? We have Alexander Hamilton's assurances, from Federalist 78, that the judiciary is "the least dangerous" branch of government. Having "neither force nor will, but merely judgment," it "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."

Few passages from the Federalist seem as anachronistic today. Almost all social controversies seem to lead to the judiciary, and often up to the Supreme Court. So Roberts' report on the condition of the judiciary should interest a country selecting its next president, who, if he or she serves two terms, will fill about half the 875 seats on the federal bench. Now more than ever, but probably less today than tomorrow, the judicial branch is central to governance.

Roberts' report recounts accompanying a Russian judge walking among Arlington National Cemetery's white headstones, at one of which the Russian placed a wreath honoring Chief Justice William Rehnquist, who had lent moral support when, during the transition from communism, Russia's legislature was impeding judicial reforms. "When foreign nations discard despotism and undertake to reform their judicial systems," Roberts wrote, "they look to the United States judiciary as the model for securing the rule of law." The problem, Roberts believes, is that we are not paying enough to acquire judicial competence commensurate with the importance of courts in our system.

Last year the House Judiciary Committee voted 28-5 for a significant but only partial restoration of what has been lost: The bill would have increased judicial pay to what it would be if judges had received the same cost-of-living increases that other federal employees have received since 1989. The Senate Judiciary Committee was considering similar legislation when last year's session ended.